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Democrats appear ready to make “net neutrality” an election issue in 2018. They plan to introduce a Congressional Review Act (CRA) resolution to force Congress to take an up-or-down vote on the Federal Communications Commission’s (FCC) decision replacing the Democrats’ approach to internet governance.

Some see this as a “clear-cut political win-win for Dems.” In their view, an up-or-down vote means only one of two things: either (1) Democrats preserve their preferred approach to net neutrality or (2) Republicans side with “telecom companies against the [alleged] will of the American people.” This strategy invokes Noam Chomsky’s theory that “the smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum….”

Chomsky’s theory spotlights the means of defeating it: Republicans should refuse to accept the alleged dichotomy of action presented by a CRA vote. To paraphrase former President Reagan, the Democrats are counting on Republicans to be passive. It is up to Republicans to ensure the Democrats are counting wrong. To do that, Republicans should reclaim the moral high ground in the internet regulation debate by breaking the Obama FCC’s strict—and nonsensical—limits on the prevailing definition of “net neutrality.”

A free market approach to net neutrality would embrace broader principles of internet governance based on traditional consumer protections—including privacy—that apply equally to all similarly-situated internet companies. An approach to internet regulation grounded in traditional consumer protection and constitutional limits would transcend today’s artificially restricted version of the debate by giving voters a third option for net neutrality, while remaining true to conservative and free market principles. Read More

“Overturning the Obama Administration’s discriminatory privacy rules was an essential step in protecting consumers’ privacy through fair federal rules. American’s privacy should be equally protected from all invasions regardless of the invader’s identity — a simple test the Obama FCC’s rules did not meet.

The next step in putting the nation’s privacy laws back on a sound footing is to make it clear that the Federal Trade Commission has authority over common carriers with respect to privacy. The FCC’s privacy jurisdiction is the relic of a bygone age that has no place in a modern regulatory scheme.”

Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website, techknowledge.center.

“The resolution enforces the enduring principle of equality in law—that the government must not impose rules that favor one class over another who is similarly situated. The FCC rules flouted this principle by singling out ISPs despite overwhelming evidence that other types of companies are similarly situated with respect to their ability to collect consumer data online.

Government coercion based on one’s membership in a particular class is the most corrupting of all, because it creates a government-sponsored privilege for the unregulated that cannot be explained by reference to first principles. When such regulation is accepted as legitimate, even for the best of pragmatic reasons, it corrodes the principles of justice that are necessary to support a free society. Left unchecked, discriminatory regulation will rust away those principles, and free society will fall.”

Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website, techknowledge.center.

Tech Knowledge filed the following comments in support of the petitions for reconsideration of the FCC’s broadband privacy rules (WC Docket No. 16-106).

Comments in Support of Petitions for Reconsideration

These comments illustrate the following points:

Google’s decision to combine its users’ personally-identifiable information with the vast browsing data of its advertising subsidiary, DoubleClick, which accesses consumer data on 75.3% of all websites that use an ad server — a decision Google made after the submission of edge-provider data on which the FCC relied — renders the FCC’s finding inaccurate with respect to the percentage of web information Google can access.

The FCC’s findings regarding encryption failed to consider consumers’ use of encrypted virtual private networks (VPNs) that are available at low cost and even for free. At a minimum, the FCC must explain why it’s necessary to impose unique privacy rules on ISPs when a solution is already widely-available in the marketplace at little or no cost.

The FCC’s failure to consider the fact that its factual findings regarding edge providers directly contradict the factual findings made by the FTC — the federal agency who is the nation’s expert on edge provider regulation — constitutes arbitrary agency action as a matter of law.

The FCC’s failure to consider arguments regarding the impact of its rules on competition among ISPs and edge providers in the online advertising and big data markets constitutes arbitrary agency action as a matter of law.

Privacy is a personal right, and it’s reasonable for consumers to assume the law will protect their person from one network to another — but the FCC’s rules do not provide such protection.

There is no legal barrier whatsoever to the FCC treating section 222 of the Communications Act as if it were coextensive with the FTC’s approach to privacy.

“I’m pleased to see that the FCC and FTC have pledged to work together on harmonizing the FCC’s privacy rules for broadband providers with the FTC’s standards for other online companies. Consumers will be best served by a consistent and easily understandable set of standards. Consumers’ privacy shouldn’t depend on which agency is charged with protecting it or the identity of the company that serves them. Consumers and internet companies alike deserve equal protection under the law.”

Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website,techknowledge.center.

Washington, DC, February 24, 2017 – Fred Campbell, director of Tech Knowledge, issued the following statement regarding news that Federal Communications Commission chairman Ajit Pai will stay the agency’s broadband privacy rules to the extent they are inconsistent with the economy-wide privacy rules enforced by the Federal Trade Commission:

“This is a critical first step in protecting consumer privacy online while promoting internet competition. The existing FCC rules are an unjust deception that must be stopped now, before the damage to consumer privacy and competition is already done.

Staying only the rules that are inconsistent with the FTC’s privacy framework doesn’t mean that there will be no enforcement mechanism in place. It only means that broadband ISPs will be subject to the same rules that apply to every other company in the United States. That’s the type of fairness that justice in this country has always required. There simply is no pro-consumer justification for the previous FCC’s decision to take a discriminatory and anticompetitive approach to this issue while dismissing the judgment of the FTC.”

Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website, techknowledge.center.

Washington, DC, January 30, 2017 – Fred Campbell, director of Tech Knowledge, issued the following statement regarding a petition to stay the Federal Communications Commission’s broadband privacy restrictions that was filed by a group of internet associations.

“The previous FCC’s decision to adopt a discriminatory approach to broadband privacy was driven by its desire to protect particular industry players, not consumers. The agency’s biased rules inhibit the ability of ISPs to compete with edge providers in the internet data market without providing any meaningful privacy protection.

If the rules were stayed, ISPs would abide by the same privacy protections as all other companies under the Federal Trade Commission’s established legal framework, which protects consumer privacy while promoting competition in the data market. Consistent privacy rules and additional competition would be a win-win for broadband consumers.”

Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website, techknowledge.center.

Yesterday Tech Knowledge filed the following comments at the Federal Communications Commission in its proceeding on the application of section 222 to broadband internet access service. The complete comments as filed can be downloaded in PDF format HERE. (Note, the HTLM version of the comments printed below does not contain the footnotes provided in the PDF version available at the link above and filed at the FCC.)

Introduction

Unlike the “telecommunications” traffic carried by the plain old telephone network, internet traffic is valued by advertisers. The data generated by internet traffic is so valuable that at least half of the internet’s economic value is based on the collection of individual user data (primarily for advertising) and most commercial content on the Internet relies on advertising to some extent. “Advertising lessens the cost that each user must pay to receive the benefits of the Internet, and expands the size of the system that society can afford to have.” To put this in perspective, the market for digital advertising ($59.6 billion) is now three times larger than the market for broadcast television advertising ($18.6 billion), and digital advertising is still growing at double-digit rates (20.4% in 2015) while broadcast television advertising is stagnant or declining. Just as watching ads is part of the price consumers pay for free broadcast television, providing access to user data is part of the price consumers pay for the internet as we know it today. Whatever benefits consumers might derive from more stringent regulation of internet data practices will necessarily involve a tradeoff in terms of higher costs — like the premium consumers pay for video services that do not sell advertising (e.g., HBO Now at $14.99 per month).

The FCC’s decision to regulate the usage of internet data for marketing purposes thus raises a central question: When and under what circumstances are the costs imposed on consumers by particular ex ante prohibitions on internet marketing (including costs to market competition) fully offset by the benefits consumers would derive from preventing such use of their data in those circumstances? Read More

While defending his decision to take jurisdiction over broadband privacy issues from another federal agency, Federal Communications Commission Chairman Tom Wheeler proclaimed the FCC “didn’t just fall off the turnip truck.” Perhaps because he had already driven it into the ditch. With this Chairman at the wheel of the FCC, the nation’s expert agency in charge of regulating the Internet, the agency can’t even keep track of public comments filed over the Internet.

During its net neutrality proceeding in 2014, the FCC omitted nearly 680,000 comments from its initial data files due to “glitches” in its electronic comment system. As quickly as the FCC is rushing to impose new regulations on Internet privacy and Internet video, one would think the FCC would have solved its problems with receiving public input by now.

Instead, it appears things have gotten worse. Comments aren’t even showing up in the FCC’s electronic system due to a “74,000-comment backup” across all FCC dockets. In the meantime, the public can’t see these comments or attempt to respond to them. If Senator Mike Lee hadn’t asked Chairman Wheeler about the FCC’s information technology problems during a hearing on Wednesday, the public likely wouldn’t have known that the FCC comment systems aren’t working properly. Read More

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It appears Wheeler didn’t get the memo from the Federal Bureau of Investigation (FBI) and other law enforcement agencies about the law governing privacy and ownership of communications addressing and routing volumes. According to a line of federal court cases dating back to the nineteenth century, users of communications networks don’t have a “justifiable,” “reasonable,” or even a “legitimate expectation of privacy” in that type of data. In fact, it’s not “your” data.

Consumers may have an expectation of privacy in the content of their communications, but that expectation doesn’t reasonably extend to the addresses or volumes of their communications. The federal courts have held that consumers don’t have a legitimate expectation of privacy in the addresses they write on sealed letters and packages sent through the U.S. mail or their weight, the numbers they dial on their telephones or the number of calls they make, or the to/from addresses of their email messages and IP addresses of the websites they visit or the volume of the data transmitted. The Supreme Court has held that an expectation that this type of information should be private “is not one that society is prepared to recognize as ‘reasonable.’” Read More